The state Supreme Court has cleared the way for capital murder trials and sentencings to resume in Delaware, ruling that the state's revised death-penalty law is constitutional.
All capital cases were put on hold in September until the state's highest court answered constitutional questions about the death-penalty law, which was amended by the General Assembly in June.
Court officials said 28 cases have been suspended since President Judge Henry duPont Ridgely, the highest-ranking Superior Court jurist in Delaware, issued the directive. Ridgely would not say Friday when cases might resume, but court officials said it could happen next week.
The state court's decision settles the constitutionality issue for pending capital cases, but questions remain about the legality of sentences issued under Delaware's old law, including the case of Thomas Capano. Convicted of murdering Anne Marie Fahey, a secretary for former Gov. Tom Carper, Capano has been under a death sentence since 1999.
The state Supreme Court still is considering constitutional issues that might pertain to Capano and 14 other men under death sentences imposed before Delaware's law was changed.
The 25-page Supreme Court opinion made public Friday was written by Justice Joseph T. Walsh. It came about seven months after the General Assembly changed the law to give juries the sole power to decide whether a first-degree murder case qualified for the death penalty. Juries previously played only an advisory role, with judges making the final determination.
The Legislature changed the law in response to a June ruling from the U.S. Supreme Court. In an appeal of an Arizona murder case, the court decided that juries, not judges, must decide whether a case qualifies for the death penalty.
"I think that should give everyone a strong comfort level that we did the right thing," said Rep. Nancy Wagner, R-Dover, chairwoman of the House Judiciary Committee.
Attorney General M. Jane Brady said her office proposed the legal change to keep Delaware law in line with the ruling from the U.S. Supreme Court.
"I have always believed this legislation was sound and would be found constitutional," Brady said Friday.
Wilmington attorney Joseph A. Gabay, one of several defense lawyers who argued against the law's constitutionality before the state Supreme Court, said he was disappointed. Gabay said he would ask the court to reconsider and hear more arguments. If that fails, he said he would petition the U.S. Supreme Court to hear an appeal.
"The fight's not over and there's still some significant issues with our death penalty," he said.
In late June, Superior Court Judge Richard S. Gebelein halted the capital murder trial of Miles Brice, scheduled to begin in Wilmington. He fashioned a series of legal questions about the changing law and sent them, through Brice's case, to the state Supreme Court.
Brice and Leon Caulk, of Townsend, were 18 when they were charged with first-degree murder in July 2001. They are accused of shooting Nicole R. Custis, 24, and Brandon J. Durant, 16, at a Lexington Green apartment, in Bear.
The five-member court answered Gebelein's questions in its opinion, saying in part:
• Changes the Legislature made to the law were merely procedural and did not violate the rights of the accused. Brice's lawyers had argued the changes made the law substantially different than it was when Brice was charged, and violated his constitutional rights.
• A jury verdict by itself may determine whether the case qualifies for the death penalty. For example, murdering more than one person makes a defendant eligible for the death penalty under the law. If a jury convicts someone of killing several people, a judge may instruct the jury that its verdict answers the question about death penalty eligibility.
Gabay, who represents Brice, said he thinks Friday's court opinion suggests the court also will uphold nearly all existing death sentences in coming weeks.
Gabay said Capano still may have a chance at a new sentencing, however, since the jury that recommended he get the death penalty was not unanimous. Capano is a former prosecutor and political insider who was convicted of murdering Fahey when she tried to end their relationship.
Staff reporter Esteban Parra contributed to this article. Reach Mary Allen at 324-2794 or mallen@delawareonline.com.
